S. C. Mathur, A.C.J - (1.) The short question arising for determination in this special appeal directed against the judgment of a learned Single Judge of this Court is whether the vacancy against which the appellant was appointed by the Committee of Management was a short term vacancy as contemplated by the U. P. Secondary Education Services Commission ( Removal of Difficulties) (II) Order, 1981 or it was a substantive vacancy. The learned Single Judge has held that the said vacancy was a substantive one and not a short term vacancy and therefore the appellant could not be appointed in the manner done by the management. The appellant assails this finding and asserts that the vacancy was short term and the same could be filled in the manner adopted by the management. It is assorted that the procedure adopted conforms with the requirements of the aforesaid Removal of Difficulties Order. A few facts necessary for the disposal of the appeal may be noticed.
(2.) The dispute in the appeal pertains to the post of lecturer in Raja Ratan Sen Smarak Inter College, Nichaul, District Maharajganj The permanent Principal of this College died on 7th January, 1992. Sri Vishnu Deo Upadhyay a permanent lecturer in the College was appointed in his place on adhoc basis. This appointment was approved by the District Inspector of Schools, for short D.I.O.S., through his order dated 10th September, 1992. For filling the vacancy caused by the adhoc promotion of Shri Upadhya, the management invited applications. The appellant responded to the advertisement and applied for the post and was selected. The papers relating to his selection were sent to the District Inspector of Schools on 10th January, 1993. According to the appellant orders were passed by the DIOS within seven days and the management proceeded to issue him appointment order dated 27th January, 1993 and in pursuance thereof he joined the post on the same day Despite this appointment, the appellant failed to get salary. This compelled the appellant to approach this Court through the writ petition which has given rise to the present appeal On these facts, it has to be determined whether the vacancy was a short term vacancy within the contemplation of (II) Order referred to herein above or not.
(3.) In exercise of the power conferred under Section 33 of the U.P. Secondary Education Services Commission and Selection Boards Ordinance, the Governor promulgated Several Removal of Difficulties Orders. One of them is the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order. 1981 hereinafter referred to as (I) Order. Paragraph-2 of this order deals with vacancies against which adhoc appointment can be made. It runs as follows : "The management of an institution may appoint by promotion or by direct recruitment a teacher on purely adhoc basis in accordance with the provisions of this Order in the following cases, namely : (a) in the case of a substantive vacancy existing on the date of commencement of this order caused by death retirement, resignation on or otherwise ; (b) in the case of a leave vacancy where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement, and (c) where a vacancy of the nature specified in Clause (a) or Clause (b) comes into existence within a period of two months subsequent to the date of such commencement." This paragraph was completely substituted by Paragraph 5 of the (II) Order which reads as follows : "The management of an institution may appoint by promotion or by direct recruitment, a teacher on purely adhoc basis in accordance with the provisions of this order in the case of a substantive vacancy caused by death, retirement, resignation, or otherwise." Under this clause adhoc appointment can be made only against a substantive vacancy caused in the manner referred to therein. Death, retirement and resignation are certain events. However apart from these three events the paragraph uses the term 'otherwise' also. The use of this term shows that the vacancy should be one which is analogous to the vacancies denoted by the term death, retirement and the resignation. When these three events take place there is no likelihood of the earlier incumbent of the post returning thereto. This is not the vacancy referred to in Paragraph-2 of the (II) Order with the filing up-of short term vacancies. Clause (I) of this paragraph reads : "If short term vacancy on the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise shall be filled by the management of the institution, by promotion of the permanent senior most teacher of the institution,' in the next lower grade. The management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted." This clause also uses two definite terms which are grant of leave and suspension. The vacancy contemplated by the term 'otherwise' will have to be analogous to these two vacancies. When an incumbent is granted leave he has all the prospects of returning and joining the post. Such a vacancy cannot be said to be a substantive one. Similarly when an incumbent is placed under suspension he has all the chance of returning to the post when the suspension order is revoked. Similarly when an incumbent is appointed to a post on temporary or adhoc basis he has all the chance of returning to the post if his appointment does not got converted into a permanent one. In the present case, at the stage the appellant was appointed it could not be said that Shri Upadhya had no prospect of returning to the post from which he had been promoted to the post of Principal on adhoc basis. We are accordingly of the opinion that the vacancy to which the appellant was appointed could not be said to be a ' substantive one, it was a short term vacancy within the meaning of Paragraph-2 of the (II) Order. Our conclusion is reinforced by third explanation to Paragraph 2 which reads : "(III) short term vacancy is not substantive and is of limited duration." In the present case, the vacancy was not substantive in as much as Shri Upadhya had all the prospects of returning to the post and it was also of limited duration the limitation of duration being till Shri Upadhya was appointed to the post of Principal on permanent basis.;